322 CMR, § 16.08

Current through Register 1538, January 3, 2025

Section 16.08 - Municipal Contaminated Shellfish Relay and Transplant

(1)Purpose. The purpose of 322 CMR 16.08 is to set forth definitions, procedures, and requirements applicable to the harvest, relay and transplant of contaminated shellfish by municipalities from shellfish growing areas classified as Restricted, Conditionally Restricted, or Conditionally Approved in the Closed Status to shellfish growing areas approved by the municipal shellfish department and classified as Approved or Conditionally Approved in the Open Status for natural purification and propagation of shellfish. The provisions of 322 CMR 16.08 are intended to ensure that contaminated shellfish relay and transplant activities conducted by municipalities are in compliance with the NSSP thereby minimizing the risk of food borne illness to consumers, preventing the diversion of contaminated shellfish into commerce or for personal consumption, and avoiding the spread of veterinary disease.

In addition, as required by St. 2017, c. 47, § 112, the Division has established at 322 CMR 16.08(6) a fee per bushel of contaminated shellfish to be paid by the municipality receiving the relayed shellfish to the municipality from whose waters the shellfish were harvested. The fee is to be used by the source municipality for its administration and enforcement of local shellfish management activities.

(2)Definitions. The following definitions apply for the purpose of 322 CMR 16.08:

Municipal Transplant means the transfer of contaminated shellfish by a municipality from a growing area classified as Restricted, Conditionally Restricted or Conditionally Approved in the closed status to transplant in a growing area classified as Approved or Conditionally Approved in the open status for the purpose of purging the contamination in such shellfish.

Municipal Transplant Site means a site identified in a Division-issued Shellfish Relay and Transplant Special Project Permit where contaminated shellfish may be transplanted for purging the contamination in such shellfish.

Receiving Municipality means a municipality issued a Division Shellfish Relay and Transplant Special Project Permit authorizing the harvest, relay or transplant of contaminated shellfish into that municipality's local waters.

Relay means the transfer of any sized contaminated shellfish by a municipality from a growing area classified as Restricted, Conditionally Restricted or Conditionally Approved in the closed status to a growing area classified as Approved or Conditionally Approved for the purpose of purging the contamination in such shellfish.

Source Municipality means a municipality which is the source of contaminated shellfish harvested for relay by the Division-permitted Receiving Municipality.

Supervising Authority means a shellfish constable duly appointed under authority of M.G.L. c. 130, § 98, or a Massachusetts Environmental Police Officer or other enforcement officer authorized to enforce M.G.L. c. 130, identified by the Receiving Municipality and in the Shellfish Relay and Transplant Special Project Permit to supervise the compliance of the harvest, relay or transplant activities in accordance with 322 CMR 16.08 and such Permit.

(3)Permit. No municipality or other person shall harvest, relay or transplant contaminated shellfish for the purposes described in 322 CMR 16.08 without a Shellfish Relay and Transplant Special Project Permit issued by the Division pursuant to 322 CMR 7.01(4)(c): Special Project. A copy of this permit shall be kept on the person of the Supervising Authority and other personnel during the course of the harvest, relay and transplant activities authorized by the permit.

(4)General Requirements.

(a) All contaminated shellfish being transplanted shall be tested by a pathologist approved by the Division, and the results of such testing must show that the shellfish is free of known shellfish diseases or is being harvested from shellfish areas currently approved by the Division.

(b) All contaminated shellfish harvested for relay and transplanting shall be removed from the source shellfish growing area, transported and replanted under the direct supervision of the Supervising Authority.

(c) Prior to the commencement of transplanting operations, signs shall be placed around the perimeter of the transplant site that provide a buffer of a minimum of 50 feet around the transplanted contaminated shellfish. Each sign shall include the following statements in bold capitalized letters:

CLOSED TO SHELLFISHING.

AREA PLANTED WITH CONTAMINATED SHELLFISH.

(d) During the course of the harvest, relay or transplant activities, the Supervising Authority shall collect and hold any commercial shellfish permits of all personnel and vessels involved in any aspect of the harvest, relay or transplanting of contaminated shellfish conducted under the authority of a Shellfish Relay and Transplant Special Project Permit.

(5)Requirements Specific to the Receiving Municipality

(a) The Receiving Municipality may hire a contractor to act as its agent to conduct the harvest, relay, transport, and reporting activities required by the Shellfish Relay and Transplant Special Project Permit.

(b) The Receiving Municipality, or its contractor, shall make arrangements with the Supervisory Authority identified in the Shellfish Relay and Transplant Special Project Permit to supervise, inspect and ensure compliance of the harvest, relay, transport, and reporting activities required by 322 CMR 16.08 and Permit.

(c) The commercial shellfish permits associated with any person or vessel involved in the harvest, relay or transplanting of contaminated shellfish shall be surrendered temporarily to the Supervising Authority while the contaminated shellfish harvest, relay and transplant activities are being conducted pursuant to the Shellfish Relay and Transplant Special Project Permit.

(d) The contaminated shellfish harvest, relay and transplant activities shall be conducted only:

1. During periods when the bottom water temperature in the transplant site remains above 45 E F.

2. During periods of good visibility.

3. During the hours of sunrise and sunset.

4. In a manner that ensures that all shellfish harvested for transplanting shall be transported to and planted at the transplant site on the same day of harvest.

5.Exception. The Director may condition the Shellfish Relay and Transplant Special Project Permit in accordance with 322 CMR 7.01(7): Conditions, to allow exceptions to same day transplanting requirement in the following circumstances as determined by the Director:

a. when the shellfish must be transported long distances from the harvest site to transplant site, thereby making it infeasible to transplant the shellfish on the same day; or

b. in the case of an emergency that necessitates the holding of contaminated shellfish overnight for next day transplanting.

(e) All shellfish harvested for transplanting shall be placed in a container. The container shall bear a tag with the following information legibility written on it in indelible ink:

1. Shellfish Relay and Transplant Special Project Permit holder name;

2. Shellfish Relay and Transplant Special Project Permit number assigned by the Division;

3. The date of harvest;

4. Shellfish growing area where the contaminated shellfish were harvested from;

5. The municipality where the transplant site is located; and

6. The following statement in bold capitalized letters: CONTAMINATED SHELLFISH.

(f) A log shall be maintained that documents for each separate harvest, relay and transplant conducted pursuant to the Shellfish Relay and Transplant Special Project Permit the following information:

1. The date of harvest;

2. The shellfish growing area of harvest;

3. The number of bags or containers of shellfish harvested;

4. The shellfish species harvested; and

5. The conveyances used for harvest, relay activities and at the transplant site.

(6)Contaminated Shellfish Transplant Fee.

(a)Receiving Municipality Payment of Fees. At the conclusion of all of the annual harvest, relay and transplant activities conducted pursuant to the Shellfish Relay and Transplant Special Project Permit, the Receiving Municipality, or its contractor on behalf of the Receiving Municipality, shall remit to the Division a fee of $1.00 for each bushel of shellfish harvested from waters of the Source Municipality during that year.

(b)Division Disbursement of Fees. The Division shall hold all contaminated shellfish transplant fees received from Receiving Municipalities and annually distribute such monies to each Source municipality based on proportional amounts of shellfish harvested in each Source Municipality. Such monies shall be used by the Source Municipality for its administration and enforcement of local shellfish management activities.

(c)Exemption. A municipality is not required to pay a contaminated shellfish transplant fee when it transplants contaminated shellfish from one growing area to another growing area located within the municipality.

322 CMR, § 16.08

Adopted by Mass Register Issue 1387, eff. 3/22/2019.

Amended by Mass Register Issue 1520, eff. 4/26/2024.